Download Drugs and the Drug Laws: Historical and Cultural Contexts

Report of the Legal Frameworks Group
to the King County Bar Association Board of Trustees:
Drugs and the Drug Laws:
Historical and Cultural Contexts
January 19, 2005
King County Bar Association
Drug Policy Project
1200 Fifth Avenue, Suite 600
Seattle, Washington 98101
206/267-7001
www.kcba.org
Introduction
This report is the product the Legal Frameworks Group of the King County Bar
Association Drug Policy Project, which included the participation of more than two
dozen attorneys and other professionals, as well as scholars, public health experts, state
and local legislative staff, current and former law enforcement representatives and current
and former elected officials. The Legal Frameworks Group was established as an
outgrowth of the work of the Task Force on the Use of Criminal Sanctions, which
published its own report in 2001 examining the effectiveness and appropriateness of the
use of criminal sanctions related to psychoactive drug use.
The Criminal Sanctions Task Force report found that the continued arrest,
prosecution and incarceration of persons violating the drug laws has failed to reduce the
chronic societal problem of drug abuse and its attendant public and economic costs.
Further, the Task Force found that toughening drug-related penalties has not resulted in
enhanced public safety nor has it deterred drug-related crime nor reduced recidivism by
removing drug offenders from the community. The Task Force also chronicled the
numerous “collateral” effects of current drug policy, including the erosion of public
health, compromises in civil rights, clogging of the courts, disproportionately adverse
effects of drug law enforcement on poor and minority communities, corruption of public
officials and loss of respect for the law. Based on those findings, the Task Force
concluded that the use of criminal sanctions is an ineffective means to discourage drug
use or to address the problems arising from drug abuse, and it is extremely costly in both
financial and human terms, unduly burdening the taxpayer and causing more harm to
people than the use of drugs themselves.
The Legal Frameworks Group, building on the work of the Criminal Sanctions
Task Force, moved beyond the mere criticism of the current drug control regime and set
out to lay the foundation for the development of a new, state-level regulatory system to
control psychoactive substances that are currently produced and distributed exclusively in
illegal markets. The purposes of such a system would be to render the illegal markets in
psychoactive substances unprofitable, to improve restrictions on access by young persons
to psychoactive substances and to expand dramatically the opportunities for substance
abuse treatment in the community. Those purposes conform to the primary objectives of
drug policy reform identified by the King County Bar Association in 2001: to reduce
crime and public disorder; to enhance public health; to protect children better; and to use
scarce public resources more wisely.
This report is the first of five major research initiatives supporting a resolution by
the King County Bar Association seeking legislative authorization for a state-sponsored
study of the feasibility of establishing a regulatory system for psychoactive substances.
This report surveys the history of drug use and drug control efforts, especially in the
United States, and also reflects on the cultural context of drugs and drug use in America,
with the intent of informing the development of a politically tenable drug control model.
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Drugs and the Drug Laws:
Historical and Cultural Contexts
DRUGS AND THE DRUG LAWS:
HISTORICAL AND CULTURAL CONTEXTS
Americans are expected to be “drug-free” in a society in which both legal and
illegal drugs are used to remarkable excess. While hundreds of thousands of American
citizens are routinely arrested and incarcerated each year for possessing and using certain
prohibited, psychoactive substances, the American commercial marketplace is flooded
with attractive media images aggressively promoting other mind-altering or pleasureinducing substances to treat various new “disorders” and “syndromes” and to satisfy the
American appetite for instant gratification.
Any critical examination of current drug policies, as well as any recommendations
for meaningful reform, must reflect an understanding of this paradox of drug use in
America, a nation that purportedly eschews drugs yet consumes them with abandon.
Crafting more effective policies to address the chronic problem of substance abuse
requires an exploration of the historical and cultural contexts of the use of psychoactive
substances in human societies and a review of the modern attempts to control such use,
particularly in the United States.
A NATURAL PROPENSITY
Archaeological evidence from across the world has revealed a human inclination
to seek altered states of consciousness through the use of psychoactive substances.1
Stone Age peoples are thought to have consumed hallucinogenic mushrooms more than
12,000 years ago.2 Sumerian tablets refer to the opium poppy through a word that means
“to enjoy.”3 The earliest historical evidence of the domestication and eating of poppy
seeds come from the lake dwellers of Switzerland 4,500 years ago.4 In the ensuing
Bronze Age, opium was used widely as a balm for the pains of childbirth and of disease
and an opium trade traversed Europe and the Middle East to Asia.5 The cultivation of
cannabis, or hemp, began in China and also in Neolithic Europe almost 4,500 years ago.6
Indian lore from before that time recognized the intoxicating properties of cannabis,
which, in the Brahman tradition, believed that it “grew at the spot where drops of divine
ambrosia fell from heaven .… [making] the mind agile while granting long life and
1
Aldous Huxley wrote: “All the vegetables sedatives and narcotics, all the euphorics that grow on trees, the
hallucinogens that ripen in berries or can be squeezed from roots – all, without exception, have been know
and systematically used by human beings from time immemorial.” As quoted in Daniel Kunitz (2001),
“On Drugs: Gateways to Gnosis, or Bags of Glue?” Harper’s Magazine, October 2001, p. 92.
2
Terence McKenna (1992), Food of the Gods: The Search for the Original Tree of Knowledge, New York:
Bantam, p. 47.
3
Alfred Lindesmith (1947), Addiction and Opiates, Chicago: Aldine, p. 207.
4
Richard Rudgley (1993), Essential Substances: A Cultural History of Intoxicants in Society, New York:
Kodansha, pp. 24-26; Ashley Montagu (1966), “The Long Search for Euphoria,” Refelections, v.1, pp. 6269.
5
Norman Imlah (1970), Drugs in Modern Society, London: Geoffrey Chapman, p. 5; Alfred Lindesmith
(1965), The Addict and the Law, New York: Vintage, p. 194. The earliest undisputed reference to the use
of poppy juice was recorded by Theophrastus (371-287 B.C.), a Greek naturalist and philosopher, around
300 B.C. See Thomas Szasz (1974), Ceremonial Chemistry, New York: Doubleday/Anchor, p. 184.
6
Richard Rudgley (1993), op. cit., p. 29.
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Drugs and the Drug Laws:
Historical and Cultural Contexts
sexual prowess.”7 The use of coca and other stimulants in South America can also be
traced back to primordial times.8
Our human ancestors consumed psychoactive substances not only to seek altered
mental states, but also for survival, suggesting an evolutionary purpose for drug-taking.
Having to endure harsh environmental conditions, hunter-gatherers sought out plants rich
in alkaloids, including opium and coca, as important sources of nutrition and energy.9
Lower animals are also known to be attracted to fermented fruits and a host of roots and
berries for their intoxicating effects, suggesting that the urge to alter consciousness
extends even deeper into our evolutionary past.10 This evidence supports the proposition
that intoxication is a universal human need, or what has been called the “fourth drive.”11
PROHIBITIONS OF THE PAST
Mind-altering substances used throughout the ages for various religious and
medicinal purposes were generally controlled carefully through rituals that often
acknowledged the substances as sacred.12 However, personal and social problems
associated with psychoactive substances have also been recognized since ancient times.13
In the modern age in particular, beginning with colonization in the 16th century and the
Great Enlightenment, Europeans took those substances sacred to the indigenous peoples
in the colonies and brought them home for recreational use, which spurred efforts to
proscribe them. For substances in common use today, including coffee, chocolate and
tobacco, there were strict prohibitions often enforced by harsh punishment.
7
Antonio Escohotado (1996), A Brief History of Drugs: From the Stone Age to the Stoned Age, Rochester,
VT: Park Street Press, p. 9
8
Richard Davenport-Hines (2002), The Pursuit of Oblivion: A Global History of Narcotics, New York:
W.W. Norton, p. 26.
9
Abbie Thomas (2002), “Survival of the Druggies,” New Scientist, 30 March 2002, p.11
10
Almost all psychoactive plants were “discovered by animals, whose familiarity with the plant world
protected them against poisoning and also allowed for altered “perception,” among which the koala bear’s
use of eucalyptus is most celebrated. See Ronald K. Seigel (1989), Intoxication: Life in Pursuit of Artificial
Paradise, New York: E.P. Dutton., pp. 19-146; Carol Kaesuk Yoon (2004), “Of Drunken Elephants, Tipsy
Fish and Scotch With a Twist,” The New York Times, March 23, 2004, p. D5.
11
Ronald K. Seigel (1989), op. cit., p. 10; See also Andrew Weil (1972), The Natural Mind: A New Way of
Looking at Drugs and the Higher Consciousness, Boston: Houghton Mifflin; and most recently Helen
Phillips and Graham Lawton (2004), “The Intoxication Instinct,” and the entire issue of New Scientist,
v.184, n. 2473, 13 November, 2004.
12
See, e.g., R. Gordon Wasson (1980), The Wondrous Mushroom: Mycolatry in Mesoamerica, New York:
McGraw- Hill; R. Gordon Wasson, A. Hoffmann and Carl A. P. Ruck (1978), The Road to Eleusis, New
York: Harcourt Brace; P. T. Furst, ed. (1976), Flesh of the Gods: The Ritual Use of Hallucinogens, New
York: Praeger.
13
Robin Room (2003), “Addiction Concepts and International Control,” Global Drug Policy: Building a
New Framework, Contributions to the Lisbon International Symposium on Global Drug Policy, October
2003, p. 16, citing references to negative outcomes associated to alcohol use that appear in the Jewish Bible
and in classic Chinese poetry; Rev. Wilbur F. Crafts et al. (1909), Intoxicating Drinks and Drugs in All
Lands and Times, cites the earliest prohibitionist teaching, by an Egyptian priest, who writes to his pupil:
"I, thy superior, forbid thee to go to the taverns. Thou art degraded like beasts." at p. 5. See
http://www.kingkong.demon.co.uk/ngcoba/cr.htm.
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Drugs and the Drug Laws:
Historical and Cultural Contexts
Tobacco smokers returning from the Americas to Spain in the 16th century were
subject to the tortures of the Great Inquisition.14 In 17th century England, King James I
despised tobacco use by his subjects because he disliked seeing them emulate the
“savage” Indians in America, while in Russia, Czar Michael Federovitch executed
anyone on whom tobacco was found.15 Tobacco use was prohibited in the 17th century in
Bavaria, Saxony, Zurich, Transylvania, Sweden and numerous other areas of Europe, and
many Eastern Mediterranean rulers at that time imposed the death penalty on anyone
smoking tobacco,16 and also on anyone owning or visiting a coffee house.17 Despite these
prohibitions and the extreme sanctions imposed, both tobacco and coffee consumption
continued and increased and were eventually normalized in European and Near Eastern
societies.18
The motivating impulses behind drug prohibitions have often been unrelated to
concerns over the effects of the drugs themselves. For example, the coffee prohibition in
the Middle East had less to do with concern about health risks of caffeine than with the
official view of the coffee house as a lurid meeting place for political and religious
dissidents.19 The Spanish Conquistadors in the New World consumed and marketed coca
liberally and used it to increase the productivity of their enslaved indigenous workers but,
on the other hand, the chewing of the sacred coca leaves by those native peoples in their
religious practice was strictly forbidden by the Catholic Church, which condemned such
“idolatry” and considered it a hindrance to the conversion to Christianity.20 In China, the
18th century opium ban, which punished keepers of opium shops with strangulation, also
served purposes unrelated to the drug – discouraging Chinese citizens from co-mingling
with “barbaric” Europeans, who were the drug’s primary merchants, and also attempting
to protect the Chinese economy by stemming the outflow of silver sent overseas in
exchange for opium.21
As prohibitionist sentiments have historically been in response to the clash of
social and cultural traditions, the use of particular drugs has been associated with
14
The first Inquisition processes for tobacco habits charged that “only Satan can confer upon human beings
the power to exhale smoke through the mouth.” Antonio Escohotado (1996), op. cit., p. 56.
15
Griffith Edwards (1972), “Psychoactive Substances,” The Listener, March 23, 1972, p. 361.
16
Around the year 1650 Sultan Murad IV of the Ottoman Empire decreed the death penalty for smoking
tobacco: "Whereever there Sultan went on his travels or on a military expedition his halting-places were
always distinguished by a terrible rise in executions. Even on the battlefield he was fond of surprising men
in the act of smoking, when he would punish them by beheading, hanging, quartering or crushing their
hands and feet . . . . Nevertheless, in spite of all the horrors and persecution . . . the passion for smoking still
persisted." Edward M. Brecher and the editors of Consumer Reports (1972), Licit and Illicit Drugs. The
Consumers Union Report on Narcotics, Stimulants Depressants, Inhalants, Hallucinogens, and Marijuana
-- including Caffeine, Nicotine, and Alcohol, Boston; Little, Brown and Co., p. 212.
17
Richard H. Blum et al. (1969), Society and Drugs, San Francisco: Jossey-Bass, p. 12.
18
Coffee use in particular was eventually authorized by Arab sultans, who were coffee addicts themselves
and encouraged its use to prevent fatigue during long readings of sacred scriptures. Antonio Escohotado
(1996), op. cit., p. 32. Tobacco was eventually regulated and taxed in Europe by the end of the 17th
century. Id. at 57.
19
Richard H. Blum et al. (1969), op. cit., p. 11.
20 Richard Davenport-Hines (2002), op. cit., p. 47; Antonio Escohotado (1996), op. cit., pp. 53-54; Richard
Rudgley (1993), op. cit., p. 133.
21
Richard Davenport-Hines (2002), op. cit., p. 46.
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Drugs and the Drug Laws:
Historical and Cultural Contexts
alternative subcultures, hated minority groups and foreign enemies.22 An “us versus
them” mentality frames the public debate, eventually singling out certain psychoactive
substances more for their perceived relationship to unpopular social groups than for any
deleterious effects of the drugs themselves.23 Thus, drug prohibition has been a means
through which dominant cultural or social groups act to preserve their own prestige and
lifestyle against threats to the established social order.24 The cultural clash that inspired
prohibitions such as England’s Gin Act of 1736, for example, which was aimed at the
lower social classes, foreshadowed the American movement for alcohol prohibition.25
Millions of Americans today suffer from the misery associated with substance
abuse and it is important not to underestimate the earnestness and legitimacy of many
governmental efforts to address very real societal dangers linked to substance abuse. It is
equally important, however, to recognize that societies’ historical reactions to drugs and
drug-related activity have arisen from a mix of cultural, religious, political and economic
factors rather than from the mere concern over certain chemical or pharmacological
actions. Such an understanding should inform more effective public policies to address
the chronic problem of substance abuse in the United States.
GROUNDWORK FOR DRUG PROHIBITION IN AMERICA
As with human consumption of psychoactive substances in all parts of the world,
drugs have been used in the United States since its earliest days as a nation. Even one of
the first events leading to the American Revolution – the Boston Tea Party of 1773 – was
a public outcry over excessive taxation of a drug.26 Peoples native to the continent
22
William L. White, “Themes in Chemical Prohibition,” in William E. Link et al., Drugs in Perspective
(1979), Washington, D.C.: National Institute on Drug Abuse, p. 171. See also David F. Musto (1991),
“Opium, Cocaine, and Marijuana in American History,” Scientific American, July 1991, pp. 20-27.
23
William L. White has identified the following eight dominant themes in the development of chemical
prohibitionist movements:
1. The drug is associated with a hated subgroup of the society or a foreign enemy;
2. The drug is identified as solely responsible for many problems in the culture, i.e., crime,
violence, and insanity;
3. The survival of the culture is pictured as being dependent on the prohibition of the drug;
4. The concept of "controlled" usage is destroyed and replaced by a "domino theory" of chemical
progression;
5. The drug is associated with the corruption of young children, particularly their sexual
corruption;
6. Both the user and supplier of the drug are defined as fiends, always in search of new victims;
usage of the drug is considered "contagious;”
7. Policy options are presented as total prohibition or total access; and
8. Anyone questioning any of the above assumptions is bitterly attacked and characterized as part
of the problem that needs to be eliminated. See William L. White (1979), op. cit.
24
Joseph Gusfield (1986), Symbolic Crusade: Status Politics and the American Temperance Movement,
Urbana and Chicago: University of Illinois Press, p. 3.
25
The Gin Act had the stated purpose of making spirits "come so dear to the consumer that the poor will
not be able to launch into excessive use of them." As with all prohibitions, however, the effort was
unsuccessful and resulted in general lawbreaking and a failure to halt the steady rise in the consumption of
even legally produced liquor. George E.G. Catlin (1931), Liquor Control, London: Thornton Butterworth,
Home University Library, p. 15.
26
The British Coercive Acts, passed in response to colonial resistance to the tax on tea, led to the formation
of the First Continental Congress, which, in turn, led to the War of Independence. See Alexander T.
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introduced the world to tobacco, which eventually financed America’s early development
as a nation.27 Coffee, tea, alcohol, hemp and the opiates, which had been known for
centuries, were brought to America by European and Asian settlers. Until the late 19th
century these drugs were used legally in the United States with much public indifference
and very little government interference.28 Indeed, taxes on psychoactive substances
provided a significant part of government revenue for most modern nations prior to the
advent of income taxation.29
The 19th Century: A Rudimentary Pharmacopoeia
Prior to 1800, opium was widely available in the United States, and throughout
the world, as an ingredient in numerous products and “multidrug prescriptions.”30 It was
hailed by doctors and peddlers of patent medicines for its “calming and soporific effects”
and was often recommended to patients as a treatment for whatever condition ailed
them.31 Opium use by women was particularly widespread because of its favored status
as a physician’s treatment for “female troubles” related to menstrual and menopausal
disorders.32 Although physicians were generally aware of the potentially harmful effects
of uncontrolled opium use, for most of the century such a danger was rarely thought to
outweigh the drug’s medicinal value.33
Morphine, a derivative of opium, was first discovered in 1804 and appeared later
in the 19th century in many patent medicines readily available to American consumers.34
Shulgin (1988), Controlled Substances: A Chemical and Legal Guide to the Federal Drug Laws, Berkeley:
Ronin Publishing, p. 243, discussing taxation as the primary means of drug control. Even after the
American Revolution, during the Whisky Rebellion of 1792, riotous protests by farmers in western
Pennsylvania against a federal tax on liquor had to be put down by overwhelming force sent to the area by
George Washington.
27
See Iain Gately (2001), Tobacco: A Cultural History of How an Exotic Plant Seduced Civilization, NY:
Grove Press.
28
The National Commission on Marijuana and Drug Abuse reported to Congress in 1973, “Drug policy as
we know it today is a creature of the 20th Century. Until the last third of the 19th Century, America’s total
legal policy regarding drugs was limited to regulation of alcohol distribution, localized restrictions on
tobacco smoking, and the laws of the various states regulating pharmacies and restricting the distribution of
‘poisons.’” See “Drug Use in America: Problem in Perspective,” Second Report of the National
Commission on Marijuana and Drug Abuse, p. 14 (1973).
29
Robin Room (2003), op. cit., p. 15.
30
David F. Musto (1999), The American Disease: Origins of Narcotic Control, 3rd ed., New York: Oxford
University Press, p. 1.
31
Id. at 70.
32
Edward M. Brecher et al. (1972), op. cit., p. 17.
33
Dr. George Wood, a professor of the theory and practice of medicine at the University of Pennsylvania,
president of the American Philosophical Society, and the author of the leading American test, Treatise on
Therapeutics, wrote in 1868 of the pharmacological effects of opium: "A sensation of fullness is felt in the
head, soon to be followed by a universal feeling of delicious ease and comfort, with an elevation and
expansion of the whole moral and intellectual nature, which is, I think, the most characteristic of its effects.
. . . It seems to make the individual, for the time, a better and greater man. . . . The hallucinations, the
delirious imaginations of alcoholic intoxication, are, in general, quite wanting. Along with this emotional
and intellectual elevation, there is also increased muscular energy; and the capacity to act, and to bear
fatigue, is greatly augmented.” in David F. Musto (1999), op. cit., pp. 71-72.
34
David F. Musto (1999), op. cit., p. 72; Friedrich Wilhelm Adam Serturner, a German chemist, first
isolated and described morphine and by 1826 the Merck Company was producing morphine in substantial
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Drugs and the Drug Laws:
Historical and Cultural Contexts
Morphine was manufactured legally in the U.S. from both imported and domestically
grown poppies and its popularity as a painkiller further expanded the American use of
opiates. Morphine use increased substantially in the 1870s following the invention of the
hypodermic syringe, the rapid spread of patent medicines and the broad acceptance of
morphine in medical practice during and after the Civil War.35
Heroin, an opiate derived from morphine through chemical processes, was a later
addition to the American pharmacopoeia. It was “discovered” in 1874 but first came to
market in 1898 when Bayer Pharmaceuticals introduced it as “The Sedative for Coughs.”
Heroin was first thought to be a cure for morphine dependency and was used briefly to
relieve morphine withdrawal symptoms,36 but it was mostly in great demand for treating
patients suffering from tuberculosis, pneumonia and other common respiratory conditions
of the time. Named for its tendency to make the user feel “heroisch” (“powerful” in
German),37 heroin’s own propensity to foster dependency was debated but did not
initially arouse much concern.38 Heroin was widely prescribed by doctors into the 1920s.
Coca has been used in South America for thousands of years for its effects as a
stimulant and for religious and mystical purposes. The active element of coca, cocaine,
was first isolated from the coca plant in 1844 and became popular in Europe and North
America as a drink additive. French Wine of Coca, Ideal Tonic, was registered under the
trademark “Coca-Cola” in 1885; due to the “dry laws” at the time, alcohol was replaced
by cola nuts in 1886.39 Originally advertised as a medicinal beverage, Coca-Cola
contained both coca and caffeine until the coca was removed in 1903.40 Cocaine was
made famous by Sigmund Freud for its “exhilarating” effect on the body and as a
treatment for depression and morphine addiction.41 The medical use of cocaine was also
publicly endorsed by the Surgeon-General of the United States Army.42 Between 1890
and 1905 cocaine’s popularity surged as a treatment for fatigue and respiratory ailments
and as an ingredient in various tonics, ointments and sprays.43
quantities. In the 1830’s pharmaceutical manufacturers in Philadelphia became the major source of
morphine for Americans. See Thomas Szasz (1974), op. cit., p.189.
35
Edward M. Brecher et al. (1972), op. cit., p. 3.
36
David T. Courtwright, “The Roads to H: The Emergence of the American Heroin Complex, 1989-1956,”
in David F. Musto, ed. (2002), One Hundred Years of Heroin, Westport, CT: Auburn House, p. 3.
37
Daniel Patrick Moynihan, “One Hundred Years of Heroics,” in David F. Musto, ed. (2002), op. cit., p.
23.
38
Heroin was widely lauded as a "safe preparation free from addiction-forming properties." Ashley
Montagu (1966), op. cit., p. 68; James R. L. Daly declared in 1900 in the Boston Medical and Surgical
Journal that heroin “possesses many advantages over morphine. . . . It is not hypnotic; and there is no
danger of acquiring the habit. . . ." Quoted in Henry H. Lennard et al. (1973), “Methadone Treatment,”
Science, v.179, p. 1079, March 16, 1973.
39
Antonio Escohotado (1996), op. cit., p. 71.
40
David F. Musto (1999), op. cit., p. 43.
41
E. M. Thornton (1983), Freud and Cocaine: The Freudian Fallacy, London: Blond and Briggs, p. 46;
Freud was considered the world’s authority on cocaine and was thought to have used it daily for almost a
decade. Advertising both for the Parke-Davis and Merck pharmaceutical companies, Freud was quoted as
claiming that cocaine would allow “doing away with all asylums for alcoholics.” See also Ernest Jones
(1953), The Life and Work of Sigmund Freud, New York: Basic Books, v.1, p. 82.
42
Jill Jonnes (1996), Hep-Cats, Narcs, and Pipe Dreams: A History of America’s Romance with Illegal
Drugs, New York: Scribner, p. 22.
43
David F. Musto (1999), op. cit., p. 7.
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Drugs and the Drug Laws:
Historical and Cultural Contexts
The Puritan and the Progressive: Confluence of Cultural Strains
In early America many drugs now considered illicit were widely and often used.
George Washington and Thomas Jefferson, in fact, documented their cultivation and use
of hemp for pain relief and other purposes.44 Drug use was not without its critics and was
certainly attended by numerous personal and family problems, but the vast majority of
drug users were able to lead productive lives and their drug use or dependency did not
prevent them from being fully functioning contributors to American society.45 Drug use
in the 19th century generally lacked the stigma of today and indeed was just as prevalent
in high society as it was in the nation’s ghettos and slums, as President William
McKinley, Queen Victoria and other European royalty celebrated and entertained with
coca wine, for example.46
The 19th century featured Western imperialism, growing international commerce,
the industrial revolution and waves of immigration, bringing about massive social and
cultural changes in the United States. The nation’s economy began moving away from
its agricultural roots and cities grew in size and importance, as factory work increased
and traditional living conditions and lifestyles changed dramatically. Substances such as
opium, tobacco, tea and coffee had become more easily obtainable through foreign trade
and alcoholic beverages became industrial commodities that were available year round.
Heavy use of substances that had once been available only to the wealthy was becoming
increasingly common in the lower classes and popular understanding of drug usage began
to change.47 While the use of many different drugs was both legal and widespread in 19th
century America, it was not universally accepted and doctors, religious leaders and
government officials warned against excess and advocated for moderation or restriction.
Arguments for prohibition began to gain political traction as the social and economic
upheavals helped bring the issue to mainstream America.
Alcohol was the earliest and most prominent target of social crusaders in the
1800s. The temperance movement first became active at the state and local levels and
the first national anti-alcohol association, the American Society for the Promotion of
Temperance, was founded in 1826. Protestant church leaders of the temperance charge
were largely motivated by old-world Puritan notions of a Christian social order and
concern that overindulgence in alcohol “seriously interfered with their soul saving
mission because it destroyed man’s health, impaired his reason and distracted him from
48
44
Ernest Abel (1980), Marijuana: The First 12,000 Years, New York: Plenum Press, quoting from the
diaries of Jefferson and Washington and from Jefferson’s Farm Books.
45
Edward M. Brecher et al. (1972), op. cit., pp. 6-7, 33-41.
46
Id.; See also E.G. Eberle et al. (1903), “Report of Committee on the Acquirement of Drug Habits,”
Proceedings of the American Pharmaceutical Association, v. 51, pp. 477, 481, in American Journal of
Pharmacy, Oct. 1903.
47
Id.
48
The clergyman Benjamin Parsons declared in 1840: ". . . alcohol stands preeminent as a destroyer. . . . I
never knew a person become insane who was not in the habit of taking a portion of alcohol every day."
Parsons listed forty-two distinct diseases caused by alcohol, among them inflammation of the brain,
scrofula, mania, dropsy, nephritis and gout. Quoted in Burton Roueche (1960), The Neutral Spirit: A
Portrait of Alcohol, Boston: Little, Brown & Co., pp. 87-88.
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Historical and Cultural Contexts
the love of God.”49 Traditional Puritan doctrine did not actually advocate total abstinence
from alcohol, however, but moderate and careful use.50 Therefore, while the temperance
movement represented Puritan values of self-control and pious reverence, the rising
influence and motivations of anti-alcohol crusaders in the early 19th century were also
attributed to other factors.
The early temperance movement had strong social and political overtones,
particularly reflecting the rising importance of the “common man” in the United States.51
The emerging new “middle class” was increasingly active in the nation’s economic,
political and social life – and also heavily used psychoactive substances – and exhibited a
certain moral independence that shunned traditional church teachings and rejected the
social standards and political power of the old American “aristocracy.” In this sense,
temperance can be viewed as an attempt by a declining ruling class to cling to traditional
values and institutions and to stake out its moral superiority by demonizing the common
man’s indulgence in drink.52
As the temperance movement grew in popularity it eventually lost its association
with aristocratic dominance and was ironically co-opted by the middle and lower classes
against which it had originally been aimed. Over time, “temperance became a sign of
middle-class respectability and a symbol of egalitarianism” and was a key tenet of the
emerging popular movement toward self-improvement and the “perfectability” of man.53
By the early 1900s this sentiment converged with the Progressive movement and thus
became a powerful political influence.
Until the 20th century the federal government had traditionally been very weak,
playing a minimal role in people’s daily lives. As urban life became a major hardship for
millions of people, however, citizens grew restless with political corruption and local
governments’ inability to respond to crises. Economic depression in the 1890s had led to
dissatisfaction with the government, while railroads, trusts and holding companies and
industrial monopolies wielded considerable political influence. The rich consolidated
their economic power, but the poor and middle class also agitated for change and from
this discontent the Progressive movement emerged.
Progressivism was based on the concept that human nature is basically good and
that government should be the tool for improving and perfecting society to create a better
world.54 As a middle-class movement, Progressivism sought to “preserve economic
opportunity and restore social and political democracy so that all American’s might
continue to prosper.”55 For all its concern about social justice, however, the Progressive
49
David E. Kyvig (1979), Repealing National Prohibition, Chicago: University of Chicago Press, p. 8.
Joseph R. Gusfield (1986), Symbolic Crusade Status Politics and the American Temperance Movement,
Urbana and Chicago: University of Illinois Press, p. 36.
51
Id.
52
Joseph R. Gusfield (1986), op. cit., p. 5.
53
Id. at 44.
54
Lewis L. Gould (2001), America in the Progressive Era, 1890-1914, Harlow: Pearson Education, p. 22.
55
James H. Timberlake (1963), Prohibition and the Progressive Movement 1900-1920, Cambridge:
Harvard University Press, p. 101. Progressivism has been described as a melding of “Calvinistic
Protestantism, Scientific Materialism and Uninhibited Capitalism.” See Henry Steele Commager (1950),
The American Mind: An Interpretation of American Thought and Character Since the 1880’s, New Haven:
50
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movement was markedly racist and xenophobic. Progressives sought to protect their own
social status by attempting to assimilate poor immigrants and racial minorities into their
ideal of a homogeneous American lifestyle. As part of their zeal to reform government,
to curb big business and to improve people’s lives, Progressives took up the cause of the
temperance movement and quickly adopted a strong stance against alcohol.56
Progressives were concerned about the consequences of drinking among the lower
classes and the potential for civil discord: “Fearful of the growing unrest from below, the
middle classes became deeply concerned lest the sale of liquor increase this discontent.”57
Saloons attracted the lower classes and were regarded as dens of debauchery that fostered
un-Americanism and prevented assimilation into American society, breeding lawlessness
and violence and conjuring up fears of rebellion by poor immigrants and laborers.58 As
the 20th century unfolded, similar fears were aroused in the public campaigns against
heroin, cocaine and other drugs.
Old Puritan values of piety, frugality and industriousness framed a new
Progressive agenda to achieve middle-class utopia through democracy and strong
government controls. The Progressives’ fervor against alcohol did not extend to heroin,
cocaine, cannabis or other drugs, however, which were thought to be benign compared
with alcohol and its tendency to lead men to social and moral ruin.59 Thus, the antinarcotics movement and the anti-alcohol movement actually arose quite independently
from one other. Nevertheless, as David Musto explains:
the interrelation between the battles against alcohol and against narcotics
is an important one. The anti-alcohol crusade helped establish the attitude
that there could be no compromise with the forces of evil, that ‘moderation’
was a false concept…” and that prohibition was the only logical or moral
policy when dealing with such a great national problem.60
Yale University Press; See generally George E. Mowry (1958), The Era of Theodore Roosevelt and the
Birth of the Modern America 1900-1912, New York: Harper & Row; Richard Hofstadter (1966), The Age
of Reform: From Bryan to F. D. R., New York: Alfred A. Knopf; and Merle Curti (1964), The Growth of
American Thought, 3rd ed., New York: Harper & Row.
56
James H. Timberlake (1963), op. cit., p. 102.
57
Id. at 115.
58
Id.; The Progressive’s battle against alcohol also served as a gateway for women to enter the national
political scene. Saloons were notorious for drawing men away from their wives and children and toward
prostitution, gambling and laziness, raising concern for women who were charged with maintaining the
nation’s home life. The movement for universal suffrage was also gaining momentum in the late 1800s and
the alcohol industry had used its political power to oppose women’s rights to the vote. Campaigning against
alcohol gave women a relevant cause upon which to begin asserting political influence, and the Women’s
Christian Temperance Union joined with the Anti-Saloon League to become a powerful political force. See
Norman H. Clark (1976), Deliver Us From Evil: An Interpretation of American Prohibition, New York:
W.W. Norton & Company, p. 4.
59
James H. Timberlake (1963), op. cit., p. 219. In contrast to alcohol, opiates “had never been associated
with the comportment of social irresponsibility, lust, or violence.” Id.
60
See summary by David F. Musto of David T. Courtwright’s Dark Paradise: Opiate Addiction in America
Before 1940, Cambridge: Harvard University Press (1982), in “The History of Legislative Control Over
Opium, Cocaine, and Their Derivatives,” in R. Hamowy ed. (1987), Dealing with Drugs, San Francisco:
Pacific Institute for Research on Public Policy, pp. 36-37.
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By 1905, in fact, Senator Henry W. Blair (R-NH) declared that “the temperance
movement must include all poisonous substances which create unnatural appetite, and
international prohibition is the goal."61
Patterns of Drug Prohibition and Race
Concern about drug use in America arose from distinct associations of certain
drugs with unpopular and vulnerable societal sub-groups – of opium with the Chinese, of
cocaine with “Negroes,” of alcohol with urban Catholic immigrants, of heroin with urban
immigrants and of marijuana with Mexicans – and from the claim that a myriad of
foreign enemies were using these drugs against the United States.62 Propaganda often
contributed to popular understanding of drugs more than factual or scientific accounts.
Throughout the 1800s Chinese exclusionary laws were commonplace, especially
in the American West, and anti-Chinese hostility intensified when Chinese workers
became a scapegoat for bad economic conditions. After the economic depression of the
1870s the California legislature began studying the “moral” aspects of its Chinese
inhabitants, with specific attention paid to the problem of “vice” in Chinese
communities.63 Anti-Chinese sentiment in the U.S. thereby created strong negative
perceptions about opium.
While opium use was common among all classes and races, opium smoking was a
distinctly Chinese practice that became an exclusive target of the public and of state
legislatures. This was particularly so once the public consciousness was awakened to the
“special problem” of white men and women who “began to ‘contaminate’ themselves by
frequenting the dens in Chinatown.”64 As the Progressive Era commenced, middle class
America struck against this threat to morality and social order.
Associating Chinese opium use with corruption of American values and female
chastity was an easily alluring explanation for social problems of the day and it became
an influential point of view.65 Smoking opium, like the Chinamen who introduced the
habit, became a despicable practice to Progressive reformers. All the while, opium in its
various other forms, including morphine and laudanum, continued for many years to be
freely dispensed by pharmacists, doctors, and purveyors of patent medicines.66
61
Quoted in Rev. Wilbur F. Crafts et al. (1909), op. cit., p. 230.
William L. White (1979), op. cit.
63
Patricia A. Morgan (1978), “The Legislation of Drug Law: Economic Crisis and Social Control,” Journal
of Drug Issues, v.8, n.1, p. 56. As Professor Morgan explains, this strategy served to help “maintain an
ideology, developing during this time, which transferred onus from the business class as cause of economic
problems to a moral attack against a race that could be perceived as the cause of a wide range of problems.
Id. at 57.
64
Id. at 58.
65
In 1878 the San Francisco police department reported that, while visiting these opium dens they “found
white women and Chinamen side by side under the effects of this drug—a humiliating sight to anyone who
has anything left of manhood.” Testimony of the San Francisco Police Department recorded in California
State Senate Committee, Chinese Immigration, Its Social, Moral and Political Effects, Sacramento, CA:
State Publishing Office, 1878. At the same time, the San Francisco Post railed against the Chinese for
having “impoverished our country, degraded our free labor and hoodlumized our children. He is now
destroying our young men with opium.”
66
Richard Davenport-Hines (2002), op. cit., pp. 83-88.
62
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Changing perceptions of cocaine at the turn of the 20th century were also linked to
race. In the late 1800s poor black laborers in South took to the habit of snorting cocaine
to help them endure strenuous conditions. Sniffing was the quickest and cheapest way to
ingest cocaine and, as a crude method of use, clearly distinguished common people from
the upper and professional class users who preferred injecting it with a needle.67
Plantation owners and other employers soon found great value in cocaine as a means of
improving productivity and controlling workers, and some even began supplying it to
their black crews.68 Poor blacks and cocaine became firmly linked in the public mind.
Racial tensions in the South soon transformed the image of black cocaine use into
a source of white fear. Fantasized stories stirred panic about “cocainized” blacks leaving
plantations and construction sites on sexual rampages having their way with white
women.69 Medical publications supported this myth with stories of how cocaine could
transform law-abiding Negroes into menacing predators with increased and perverted
sexual desire.70 Also appealing to anti-Semitic sentiments, newspapers reported that there
was "little doubt that every Jew peddler in the South carries the stuff."71 Other popular
legends attributed cocaine to giving blacks superhuman strength and that southern police
departments switched from .32 caliber to .38 caliber revolvers because cocaine made
crazed blacks impervious to the smaller rounds.72
Thus, the anticipation that blacks might “rise up” above their place in society gave
rise to considerable white alarm.73 The racist roots of this image are further exposed by
the fact that blacks were not the predominant users of cocaine in the early 20th century.74
Cocaine sniffing was more popular with whites and was especially associated with the
criminal cultures of prostitutes, pimps, gamblers and other white “urban hoodlums.”75
The national prohibition of alcohol sales in the 1920s stimulated an increase in
cannabis smoking, called “marihuana” by the Mexican immigrants who brought it with
them for recreational and medicinal use.76 In the 1930s marijuana use was found to be
widespread from schools to neighborhood bridge parties.77 Despite such common usage,
however, public concern about marijuana was aroused through its association with
67
Charles E. de M. Sajous (1902), Analytical Cyclopaedia of Practical Medicine, III, Philadelphia: F.A.
Davis, p. 506.
68
Richard Davenport-Hines (2002), op. cit., p. 200.
69
Id. Dr. Edward H. Williams cited Dr. Christopher Kochs: "Most of the attacks upon white women of the
South are the direct result of the cocaine crazed Negro brain" and Dr. Williams concluded that "Negro
cocaine fiends are now a known Southern menace." “Negro Cocaine ‘Fiends’ Are A New Southern
Menace,” The New York Times, Feb. 8, 1914, IV, p 12.
70
Joseph F. Spillane (2000), Cocaine: From Medical Marvel to Modern Menace in the United States,
1884-1920, Baltimore: Johns Hopkins University Press, pp. 92-93.
71
William L. White (1979), op. cit.
72
David F. Musto (1999), op. cit., p. 7.
73
David F. Musto (1999), op. cit., p. 7.
74
William O. Walker, III (1981), op. cit., p. 14.
75
Richard Davenport-Hines (2002), op. cit., p. 200.
76
Ronald K. Siegel (1989), op. cit., p. 273.
77
William O. Walker, III (1981), op. cit., p. 102; Marijuana “tea pads,” reminiscent of opium dens of days
gone by, began to appear in New Orleans and other southern port cities and by 1930 they were all over the
United States, with 500 or so in New York City alone. Ronald K. Siegel, op. cit., p. 273.
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Mexicans; and fear of marijuana in the United States was most intense in areas with high
concentrations of Mexican immigrants.78
Like the Chinese before them, Mexican immigrants were a targeted scapegoat for
high unemployment rates in the 1930s and their association with marijuana helped raise
public alarm.79 The medical community also appealed to public prejudices, suggesting
that marijuana “releases inhibitions and restraints imposed by society” and “acts as a
sexual stimulant” that particularly affects “overt homosexuals.”80
Fast-forwarding to the 1980s and 1990s, the national panic over “crack” cocaine
has fostered the perception of the drug’s predominance in poor, black urban settings and
yet, according to the U.S. Sentencing Commission, "nearly 90 percent of the offenders
convicted in federal court for crack cocaine distribution are African-American while the
majority of crack cocaine users are white.”81 The disproportionately adverse effect of
drug law enforcement on the poor and racial minorities now spans more than a century.
A close examination of the legislative history of America’s drug laws reveals a
host of uncharitable sentiments that have helped shape public perceptions of disfavored
social subgroups and their practices. Any meaningful effort to reform drug policy in the
United States must acknowledge this uncomfortable historical nexus between racial
animus and American public attitudes towards certain drugs.
LEGISLATIVE BEGINNINGS IN THE STATES
There was no national drug control policy in the United States during the 19th
century as state and local governments promulgated the earliest drug laws, and even those
laws were limited to regulation of alcohol distribution, local restrictions on smoking
tobacco and regulation of pharmacies.82 During that time “statutory vocabulary was
simple and direct: arsenic, tobacco, alcohol, morphine, and other opium alkaloids were all
78
David F. Musto (1999), op. cit., p. 219. The Federal Bureau of Narcotics contributed to public fears over
marijuana by promulgating official statements about police estimates that “fifty percent of the violent
crimes committed in districts occupied by Mexicans, Spaniards, Latin Americans, Greeks or Negroes may
be traced to this evil” of marijuana. Richard J. Bonnie & Charles H. Whitebread II (1974), The Marijuana
Conviction, Charlottesville: University Press of Virginia, p. 100, citing a statement from Will S. Wood to
Aaron W. Uris.
79
C.M Goethe of the American Coalition stated that, “marijuana, perhaps now the most insidious of our
narcotics, is a direct by-product of unrestricted Mexican immigration.” He added that, “Mexican peddlers
have been caught distributing sample marijuana cigarets [sic] to school children” and concluded by saying
“our nation has more than enough laborers.” The New York Times, September 15, 1935, IV, p. 9; A Texas
police captain summed up the Mexican marijuana problem, describing how it made Mexicans "very
violent, especially when they become angry….They seem to have no fear, I have also noted that under the
influence of this weed they have enormous strength and that it will take several men to handle one man
while under ordinary circumstances one man could handle him with ease." Ernest L. Abel (1980), op. cit.,
p. 207.
80
David F. Musto (1999), op. cit., p. 220, quoting a leading researcher’s presentation to the American
Psychiatric Association in 1934.
81
U.S. Sentencing Commission (1997), Special Report to the Congress: Cocaine and Federal Sentencing
Policy, Washington, DC: US Sentencing Commission, April 1997, p. 8.
82
“Drug Use in America: Problem in Perspective” (1973), Second Report of the National Commission on
Marijuana and Drug Abuse, p. 14.
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‘poisons’” and, when they were regulated at all the law put the onus on the health
professions to police their distribution.83
Early state and local drug laws varied immensely in scope and effect. In 1860
Pennsylvania enacted an early anti-morphine law. In 1875 San Francisco passed an antiopium law that is widely considered the first of its kind, targeting only the smoking of
opium, which was common among Chinese immigrants, and not affecting the myriad
other forms of opium use favored by most Americans. The California state legislature
enacted a similar law in 1881 that focused only on opium smoking dens.84 Virginia City,
Nevada had passed a similar anti-opium ordinance in 1876 and this law was expanded
and adopted statewide a year later. Other cities and states across the nation soon
followed suit. These laws were all different and, for the most part, full of so many
loopholes and exceptions that they were largely ineffective in actually preventing or
limiting opium smoking.
Almost none of the early drug laws imposed a blanket prohibition on any
substance. “A typical law would provide for the sale of narcotized proprietaries without
restriction, but would confine provision of pure drugs to pharmacists and physicians,
requiring a prescription that would be retained by the pharmacist for inspection for a
period of time.”85 Some of these laws were so complicated that compliance was
impossible, while others were practically nugatory due to exceptions for patent medicines
and domestic remedies.86 Despite the relative laxity of the laws, they were enforced to
varying degrees against targeted or guileless violators. Passage of these laws marked the
first time in United States history when people began getting arrested for possession of
drugs, and punishments were frequently “prompt and thorough.”87
THE FIRST FEDERAL DRUG LAWS
Federal involvement in regulating drugs first emerged to bolster state efforts and
reflected a similar concern about social groups using certain drugs rather than the drugs
themselves. In 1883 Congress raised the import tariff on smoking opium, leaving opium
imported for other purposes unaffected.88 In 1887 Congress prohibited the import of
opium into the United States by any subject of China; the law did not apply to nonChinese and importation from Canada remained legal.89 In 1890 a new federal law
permitted only American citizens to manufacture opium for smoking.90
83
Id.
Smoking opium alone or with friends in a private residence was not covered by the California
legislation. See Elaine Casey (1978), History of Drug Users and Drug Use in the United States, Facts
About Drug Abuse Participant Manual, The National Drug Abuse Center for Training Resource and
Development, U.S. Govt. Publication No. 79-FADA-041P.
85
David F. Musto (1999), op. cit., p. 91.
86
Id.
87
Edward M. Brecher et al. (1972), op. cit., p. 43.
88
Charles E. Terry and Mildred Pellens (1928), The Opium Problem, New York: Committee on Drug
Addictions, Bureau of Social Hygiene, p. 747.
89
Alexander T. Shulgin (1988), Controlled Substances: A Chemical and Legal Guide to the Federal Drug
Laws, Berkeley: Ronin Publishing, p. 244.
90
Edward M. Brecher et al. (1972), op. cit., p. 44.
84
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The early federal opium laws produced mixed results. They were effective to the
extent they were intended to marginalize the Chinese and to clarify social distinctions;
indeed, maltreatment of the Chinese in the United States was so prevalent that it raised
the ire of the Chinese government and threatened to destabilize trade and international
relations.91 However, from the viewpoint of actually improving the nation’s health and
safety and reducing use of drugs these laws did very little. Opium and other drugs
continued to be legally available in many forms, and they were used for various purposes
in all strata of American society.
Government officials were aware of the opium laws’ failures and of their
consequences. The U.S. Treasury reported in 1888 that the effect of federal efforts had
been “to stimulate smuggling…by systematic organizations on the Pacific coast” and that
“although all possible efforts have been made by this Department to suppress the traffic,
it is found practically impossible to do so.”92 These early difficulties, however, did not
prevent the Congress from promulgating even more stringent measures in the future.
The Pure Food and Drug Act
A new chapter in the history of U.S. drug regulation began with the passage of the
federal Pure Food and Drug Act of 1906, which required foods and medicines to be
properly labeled as to their ingredients and contents. The Pure Food and Drug Act did
not impose prohibitions on any substance; rather, it required only that certain products
containing dangerous or potentially habit-forming drugs include appropriate notices to
the public. The measure was the most prominent example of federal consumer protection
legislation that emerged from the American Progressive movement.
At the turn of the 20th century Americans read stories of graft and greed and the
works of famous “muckraking” journalists such as Upton Sinclair were popular favorites,
and public sentiment supported congressional action to regulate the food and drug
industries. A principal target of the muckrakers was the patent medicine industry,
portrayed as peddling adulterated, mislabeled products in a reckless manner. “Poisonous
substances provided an issue on which prohibitionists, social reformers and proponents of
federal intervention combined with enduring results.”93 Public officials responded by
targeting patent medicine-makers with regulation, all for the sake of “purification” and to
“protect the children.”94
The Pure Food and Drug Act marked a significant change in the conception of the
constitutional power of the federal government. Matters of public health and safety were
long considered the exclusive realm of the states and the federal government had no
ability to exercise a general police power. This was especially true in an area that
affected business interests, so Congress had to be creative in the drafting the Pure Food
91
David F. Musto (1982), “The History of Legislative Control Over Opium, Cocaine, and Their
Derivatives,” op. cit., summarizing David T. Courtwright (1982), op. cit.
92
Id.
93
Richard Davenport-Hines (2002), op. cit., p. 212.
94
Id.
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and Drug Act as a criminal statute, ultimately relying on the Commerce Clause for its
authority.95
Although the Pure Food and Drug Act did not impose any prohibitions, it had a
historically demonstrable effect on reducing opiate addiction.96 New purity and labeling
requirements markedly improved the safety of medicines and drugs available to the
public. This record of success was interrupted, however, by the passage of the Harrison
Narcotic Act of 1914, which essentially cut off access to the legal, well-regulated supply
of opiates and enabled the growth of an illicit market in adulterated, misbranded and
contaminated drugs of all kinds.97
The national “anti-drug” movement in the United States was only in its infancy at
the time of the Pure Food and Drug Act, whereas alcohol had been the primary target of
moral and social crusaders for quite some time. The Anti-Saloon League and the
influential alcohol prohibition movement had overshadowed “anti-drug” forces, which
lacked any strong central organization. It is peculiar, therefore, that the nation’s first
major “anti-drug” law, the Harrison Narcotics Act of 1914, was adopted a full five years
before National Alcohol Prohibition.98 This historical anomaly stems directly from the
efforts of a few charismatic, driven and influential individuals and from America’s
changing role in world politics at the dawn of the 20th century.
Opium and U.S. Occupation of the Philippines
Victory in the Spanish-American War in 1899 turned the United States into a
world power, which acquired Puerto Rico, Guam, Cuba and the Philippines, embracing
its moral duty to uplift the inferior peoples in these territories.99 The Filipinos were less
enthusiastic about U.S. domination, however, and they rose up against the American
occupiers in a prolonged insurrection. Upon suppressing this uprising, the United States
took over governance of the Philippines and William Howard Taft was appointed civil
governor. One of the first major problems he had to face was how to deal with island’s
“opium problem.”
95
At the time of its passage, some members of Congress expressed deep concern that the Pure Food and
Drug Act represented an illegal exertion of power not expressly delegated to it by the Constitution.
Nevertheless, the law was enacted and subsequently upheld as a valid exercise of Congress’ constitutional
power to regulate commerce between the states. See United States v. Seventy-Four Cases of Grape Juice,
181 F. 629 (W.D.N.Y. 1910); See also Shawnee Milling Co. v. Temple, 179 F. 517 (S.D. Iowa 1910). See
also the discussion of evolving federal commerce power in “States Rights: Toward a Federalist Drug
Policy.” Report of the Legal Frameworks group to the King County Bar Association Board of Trustees,
2005.
96
See Lawrence Kolb and A.G. Du Mez (1924), The Prevalence and Trend of Drug Addiction in the United
States and Factors Influencing It, Treasury Department, US Public Health Service, Reprint No. 924,
Washington D.C.: US Government Printing Office, p. 14.
97
Id.
98 Since the late 1800s the Anti-Saloon League presented a powerful political front against alcohol and the
liquor industry. Its power grew and was manifested in the rising popularity of the Prohibition Party, which
influenced presidential politics, culminating in 1919 with passage of the 18th Amendment prohibiting the
sale of alcohol in the United States.
99
H.U. Faulkner (1959), Politics, Reform, and Expansion, 1890-1900, New York: Harper and Row, p. 239.
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Opium use in the Philippines was very common and the Spanish had previously
operated an opium monopoly on the islands that entailed licensing narcotics addicts and
legally supplying them with their requirements of the drug.100 Despite Governor Taft’s
support for continuing this practice, the notion was extremely offensive to two influential
American religious leaders in the Philippines, Reverend Wilbur Crafts, a Roosevelt
administration official and leader of the International Reform Bureau, and the Reverend
Charles H. Brent, the Episcopal Bishop of the Philippines. Both of these men strongly
opposed, on moral grounds, American involvement in supporting such a vice as opium
taking, especially in providing it to our foreign charges.101 The vocal opposition of
Bishop Brent and Wilbur Crafts proved to be decisive in preventing the U.S. from
reinstituting the Spanish opium monopoly in the Philippines.
In 1905 Congress ordered that all Filipinos be prohibited from obtaining opium
for any non-medical purpose and that all legal sales of the drug would be prohibited by
1908.102 This policy set a powerful precedent and had long-term implications. Even
though American officials acknowledged that “prohibition of opium smoking in the
Philippines does not in fact prohibit,”103 Congress was nevertheless disposed to support
outright prohibition and the United States established itself as the world leader in the area
of international narcotics control.104
Opium and Tension With China
By 1900 China was outwardly expressing deep concern about foreign interference
and about opium use by its people, culminating in the Boxer Rebellion, which was the
strongest manifestation of Chinese nationalism and anti-imperialism to date.105 President
Roosevelt even considered deploying troops to China to protect American investments.106
However, this international crisis provided a unique window of opportunity that was
seized upon by the fledgling American anti-drug movement.
Bishop Brent urged President Roosevelt to help China in its battle against
opium.107 U.S. efforts in the Philippines had been considered a success and inspired hope
that it may serve as a successful model elsewhere. Bishop Brent and Reverend Crafts
called for an international meeting between the United States, Japan and the other
powerful nations with interests in the Far East, and President Roosevelt agreed with this
100
Richard Davenport-Hines (2002), op. cit., pp. 202-203.
Reverend Crafts was a well-known advocate for an “international civilizing crusade against alcohol and
drugs” and he supported “a policy of prohibition in all indigenous races, in the interest of commerce as well
as conscience.” Antonio Escohotado (1996), op. cit., p. 77. Bishop Brent worked closely with the United
States War Department in managing the Philippines and was dedicated to freeing Asia from opium and was
an international leader in the anti-opium movement. Id.; See also David F. Musto (1999), op. cit., pp. 2526. The influence of Reverend Craft and Bishop Brent largely shaped America’s international and national
drug policy for decades to come.
102
Id.; See Philippine Tariff Revision Act, 3 March 1905, 33 Stat. L. 944.
103
Richard Davenport-Hines (2002), op. cit., p. 205.
104
David F. Musto, “The History of Legislative Control Over Opium, Cocaine, and Their Derivatives,” op
cit., summarizing David T. Courtwright (1982), op. cit.
105
David F. Musto (1999), op. cit., p. 29.
106
Antonio Escohotado (1996), op. cit., p. 78.
107
Id.
101
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approach, eventually convening the Conference of the International Opium Commission
in Shanghai in 1909.108
Along with Bishop Brent and Reverend Wilbur Crafts, the third major seminal
figure in the development of American drug policy was an ambitious, Washington, D.C.
doctor named Hamilton Wright, who had some knowledge about opium and “Oriental”
cultures. The State Department had appointed Wright to the American delegation to the
Shanghai Opium Conference. Dr. Wright began many years of tireless work that
eventually earned him the informal title of “father of American narcotic laws.”
By calling and convening an international meeting on the Chinese opium trade,
the United States was again holding itself out as a world leader on the issue of drug
policy, and Hamilton Wright believed the U.S. should serve as a model for other nations
by enacting its own “exemplary” opium laws.109 Ironically, the U.S. itself had no laws
limiting the use, sale or manufacture of products containing opium and coca, so to save
face in advance of the international opium conference, Wright worked with Secretary of
State Elihu Root and others to remedy this situation before the meeting, helping to secure
the enactment of national opium prohibition.110
The 1909 Opium Exclusion Act
The Opium Exclusion Act was the first federal drug prohibition law, passed
quickly just as the Shanghai Opium Conference was convening as a message of U.S.
intolerance toward recreational drug use. Constitutional concerns led the State
Department to recommend that Congress impose a prohibition through a national ban on
imported, non-medicinal smoking opium.111 Section 11 of the Pure Food and Drug Act
had already authorized the federal government to ban any imported drug deemed
dangerous to the public’s health, but Congress went ahead and approved the Opium
Exclusion Act in any event, on February 9, 1909.112
The Foster Antinarcotics Bill: Prelude to the Harrison Act
Upon his immediate return from Shanghai, Hamilton Wright sought sweeping
federal anti-drug legislation, to be founded upon Congress’ constitutionally granted
taxing power, and he drafted just such a proposal. Representative David Foster of
Vermont, chairman of the House Committee on Foreign Affairs, introduced Wright’s
legislation in 1910. Known as the Foster Antinarcotics Bill, it called for a federal tax on
108
The 1909 Shanghai Opium Conference produced mixed results. Delegates from thirteen nations were
present, but they were unable to reach any binding agreements or accords. They did, however, air “the
issue of international control and looked ahead to subsequent meetings.” William O. Walker, III (1981), op.
cit., p. 15 Most of the attendees expressed little interest in taking efforts to prohibit drugs, and there was
not even agreement about the evil or immorality of non-medicinal drug use. David F. Musto (1999), op.
cit., p. 36.
109
David F. Musto (1999), op. cit., p. 33.
110
See Edward Marshall (1911), “Uncle Sam is the Worst Drug Fiend in the World,” The New York Times,
March 12, 1911, V, p. 12.
111
David F. Musto (1999), op. cit., p. 34.
112
Id. at 34-35.
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all drug transactions in the nation and would have required all sellers of drugs to register
with the government and to record and report all of their transactions.
Supporters of the Foster Antinarcotics Bill appealed to popular fears and myths
about racial minorities.113 The interests opposed to the bill, however, including the
nation’s drug manufacturers and retailers, opposed the bill for its cumbersome recordkeeping and reporting requirements and, since the public was not enthusiastically driving
a national anti-narcotic movement, the arguments of business and industry carried their
weight in Congress. Despite calls from Hamilton Wright and President Taft that the
United States had to show the world that it “had its house in order” before the second
International Opium Conference in the Hague in 1912,114 the measure failed.
The Harrison Act of 1914 and its Interpretation
Still resolved to see domestic drug prohibition enacted, Hamilton Wright had his
legislation introduced in the next session. This time, Representative Francis Burton
Harrison (D-NY), who himself had been Governor General of the Philippines from 1913
to 1921, agreed to shepherd it through the House. The bill met again with strong
opposition, especially from the American Medical Association, so the bill’s proponents
reluctantly agreed to modify its record-keeping provisions, to reduce the penalties and to
continue to allow the sale of patent medicines with small amounts of narcotics in them.115
After the grudging compromise of all parties, the result was the Harrison Narcotic Act of
1914, a major watershed in the federal effort to regulate drugs.116
The Harrison Act required all manufacturers and purveyors of narcotics to register
their activity with the federal government, to keep records of their sales and to pay a tax
on each transaction.117 Although ostensibly only a tax measure, the practical effect of the
Harrison Act was to severely limit the availability of opium and cocaine for non-medical,
recreational purposes. The bill was not presented as a prohibitionist measure in reaction
to domestic morality concerns; rather, the congressional debate focused on comporting
113
With continuing regard to opium, Wright noted that “one of the most unfortunate phases of the habit”
was a “large number of women who have become involved and were living as common-law wives or
cohabiting with Chinese in the Chinatowns of our various cities.” Hamilton Wright (1910), Report on the
International Opium Commission and on the Opium Problem as Seen within the United States and Its
Possessions, Opium Problem: Message from the President of the United States, Senate Doc. No. 377, 61st
Cong, 2nd Sess., 21 Feb. 1910, p. 45. Speaking of the danger of cocaine Wright reported that “it has been
authoritatively stated that cocaine is often the direct incentive to the crime of rape by the Negroes of the
South and other sections of the country.” Id. at 48-49.
114
Id. at 45.
115
David F. Musto, “The History of Legislative Control Over Opium, Cocaine, and Their Derivatives,” op
cit., summarizing David T. Courtwright (1982), op. cit.
116
Signed into law on December 17, 1914, the official title of the Harrison Act was: “An Act to provide for
the registration of, with collectors of internal revenue and to impose a special tax upon all persons who
produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca
leaves, their salts, derivatives or preparations, and for other purposes.” United States Statutes at Large,
v.36, 63 Cong., 3 Sess, Part I, pp. 785-90.
117
Eva Bertram, Morris Blachman, Kenneth Sharpe, & Peter Andreas (1996), Drug War Politics: The
Price of Denial, Berkeley: University of California Press, p. 68.
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with international treaty obligations imposed by the Hague Opium Convention of 1912.118
In only a few short years, however, the Harrison Act was transformed from a relatively
innocuous revenue measure into a powerful tool for federal authorities to regulate, and
ultimately prohibit, a wide range of narcotics-related activity.
Linking the Harrison Act to The Hague Opium Convention was a clever means to
circumvent constitutional concerns at the time. The power of Congress to regulate
interstate commerce and to raise revenue was considered to be very limited in 1914 and
the prevailing view was that the power to regulate “local” affairs was reserved to the
states by the Tenth Amendment.119 Therefore, federal control of narcotics and medical
prescriptions was thought to be unconstitutional.120 However, Hamilton Wright and his
cohorts had purposefully engineered the Hague Opium Convention in order to establish a
mandatory international legal foundation on which U.S. drug laws would be built.121
To the U.S. medical community the Harrison Narcotic Act was seen mostly as “a
law for the orderly marketing of opium, morphine, heroin, and other drugs—in small
quantities over the counter and in larger quantities on a physician’s prescription.”122
Doctors and pharmacists felt protected by the language of the statute, which they had a
hand in drafting, specifically shielding them from government interference in their
medical practices.123 However, instead of protecting doctors, the language of the Act was
subject to multiple interpretations and it was not long before undercover U.S. Treasury
agents – the original “narcs” – began arresting thousands of doctors and pharmacists for
prescribing and administering drugs to narcotics addicts.124
Although the Harrison Act was vague about what it meant for physicians to act
only “in pursuit of their professional practice,” the U.S. Treasury Department took
initiative to promulgate rules forbidding doctors from providing drugs for addiction
118
The Hague Opium Convention of 1912 was the result of Hamilton Wright’s efforts to achieve
international consensus on narcotics control. The treaty urged signatories “to use best endeavors” to
suppress the illicit drug trade. William O. Walker, III (1981), op. cit., p. 16.
119
Richard J. Bonnie & Charles H. Whitebread II (1974), op. cit., p. 16. See “States Rights: Toward a
Federalist Drug Policy,” op. cit.
120
Eva Bertram et al. (1996), op. cit., p. 9.
121
Article VI of the U.S. Constitution makes international treaties the supreme law of the land and
presenting the Harrison Act as necessary to comply with The Hague Convention lent the Act constitutional
legitimacy. William O. Walker, III (1981), op. cit., p. 16.
122
Edward M. Brecher et al. (1972), op. cit., p. 48.
123
The Harrison Act stated, in relevant part: “Nothing contained in this section shall apply to the dispensing
or distribution of any of the aforesaid drugs to a patient by a physician, dentist, or veterinary surgeon
registered under this Act in the course of his professional practice only.” Public Law No. 223, 63rd Cong.,
approved December 17, 1914.
124
Richard Davenport-Hines (2002), op. cit., p. 230; Eva Bertram et al. (1996), op. cit., p. 69. The federal
crackdown on doctors was also generally justified by reports discrediting the medical profession, especially
the Carnegie Foundation’s Flexner Report of 1910, which revealed defective medical training and shoddy
medical research practices. As a result, not only was drug addiction criminalized, but scientific research on
psychoactive drugs was virtually halted. See Norman E. Zinberg and John A. Robertson (1969), Drugs and
the Public, New York: Simon and Schuster, pp. 69-69.
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maintenance in cases where addiction was deemed unrelated to medical issues.125 The
question of whether Congress had the power to regulate doctors and to punish the mere
possession of drugs quickly became a contentious legal issue and the Treasury
Department’s efforts to enforce the Harrison Act as a prohibitionist law against doctors
and their patients were initially rebuffed by the courts.126
The Doremus and Webb Decisions
Undaunted by adverse court rulings, the Treasury Department continued attempts
to regulate the prescription practices of doctors and pharmacists under the guise of tax
law enforcement. Finally, in the 1919 case of United States v. Doremus, the Supreme
Court explicitly upheld the Harrison Narcotic Act as a legitimate revenue measure,
confirming federal authority to control the manner in which physicians could dispense
drugs.127 In the companion case of Webb v. United States, decided on the same day as
Doremus, the Supreme Court held that the legitimate practice of medicine could not
include prescribing drugs to patients simply to maintain their addiction with no intent to
cure them.”128 The Treasury Department used this decision to support its enforcement
against physicians who were distributing drugs to patients “for the purpose of gratifying
his appetite for the drug.”129
A New Political Climate
During the brief period when the Supreme Court expanded its interpretation of the
permissible scope of the Harrison Narcotic Act, dramatic events around the world and at
home profoundly affected Americans’ sense of purpose and security. Between 1914 and
1919 the First World War raged in Europe, ratification of the 18th Amendment imposed
national alcohol prohibition in the United States and the Progressive Era of middle-class
125
This vagueness in the statute may have been intentional on the part of Congress: “The manifest lack of
federal power to regulate medical practice as well as the need to unify professional support of the Harrison
Act may have required these vague phrases.” David F. Musto (1999), op. cit., p. 125.
126
The first major legal challenge to the constitutionality of the Harrison Narcotic Act came in 1916 when
the Supreme Court limited the scope of the Act in the case of United States v. Jin Fuey Moy, 241 U.S. 394
(1916), denying the U.S. Treasury Department’s attempt to prosecute a doctor for prescribing drugs to an
addict and to criminalize the addict’s possession of an illicit drug. The Court recognized that an act of
Congress is only valid if carried out pursuant to an expressly granted constitutional power and, in so doing,
held that the Harrison Act was not required under international treaty and, therefore, where the Act was
passed under Congress’ taxing power, it could only be valid for raising revenue. The Court then found that
both preventing a doctor from exercising professional judgment to prescribe drugs and prohibiting mere
possession of drugs were actions unrelated to revenue collection and that the federal government could not
use the Harrison Act to prosecute doctors who prescribe drugs or to prosecute individuals who possess
drugs. United States v. Jin Fuey Moy, supra, at 401.
127
Justice Day wrote that, “[i]f the legislation enacted has some reasonable relation to the exercise of the
taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed motives
which induced it….The act may not be declared unconstitutional because its effect may be to accomplish
another purpose as well as the raising of revenue.” United States v. Doremus, 249 U.S. 86, 93, 94 (1919).
128
The Webb case arose from a factual scenario in which a doctor was arrested and prosecuted for selling
thousands of prescriptions to addicts. The Court’s majority opinion summarily concluded that, to call
“such an order for the use of morphine a physician’s prescription would be so plain a perversion of
meaning that no discussion of the subject is required.” Webb v. United States, 249 U.S. 96 (1919).
129
Eva Bertram et al. (1996), op. cit., p. 74.
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egalitarianism quickly faded into history. It was a time when “the liberalizing
movements of LaFollette, Theodore Roosevelt and Woodrow Wilson had declined into a
fervent and intolerant nationalism” and America was gripped with fear of anarchy and
communism following the Bolshevik Revolution.130
By 1919 Americans were in no mood to take a soft stance on any perceived
national threat. The use of narcotics was being demonized as antisocial and personally
degenerating and the public willingly opposed any suggestion of maintaining such a vice
at that time.131 Prohibitionist sentiments ran high and not just in regard to alcohol and
narcotics; tobacco was also gaining critics and by 1921 cigarettes would be prohibited in
fourteen states, with 92 other anti-cigarette bills under consideration in another 28 state
legislatures.132
The Behrman and Linder Decisions
The Treasury Department continued to pursue its prohibitionist agenda before the
Supreme Court, and in 1922 the case of United States v. Behrman expanded upon prior
court decisions. The Behrman decision specifically upheld the Treasury Department’s
rule that made it illegal for doctors to prescribe drugs to addicts whose only ailment was
addiction itself. The 6-3 decision affirmed the Treasury’s position that a narcotics
prescription for an addict was a de facto criminal act, regardless of the intent or “good
faith” of the physician.133
In 1925 the Supreme Court drew back from the Behrman holding in Linder v.
United States, unanimously declaring that:
“[t]he opinion cannot be accepted as authority for holding that a physician,
who acts bona fide and according to fair medical standards, may never give
an addict moderate amounts of drugs for self-administration in order to
relieve conditions incident to addiction. Enforcement of the tax demands no
such drastic rule, and if the Act had such scope it would certainly encounter
grave constitutional difficulties.”134
The Court also expressed its view that drug addiction is a disease and that relieving the
“conditions incident to the addiction” may be medically appropriate.135
In the short span between the Behrman and Linder decisions, however, the die
had been cast and the Court’s reversal had little effect on national drug enforcement
policy. The Treasury Department’s punitive enforcement practices were so firmly
established by 1925 that “few were willing to challenge Treasury’s actions politically or
in court, and the ruling had little real impact.”136 The Linder decision’s irrelevance is
evidence of just how embedded the “anti-drug” sentiment had become in American
David F. Musto (1999), op. cit., p. 132.
Id. at 134.
132 Elaine Casey (1978), op. cit.
133
United States v. Behrman, 258 U.S. 280, 289 (1922).
134
Linder v. United States, 168 U.S. 5, 22 (1925)
135
Eva Bertram, et al. (1996), supra note 3, at 75.
136
Id.
130
131
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politics in such a short time, as the changing social and political climate allowed
Congress to expand its police powers to calm the temporary passions of the time. In any
event, with the foundation firmly laid the nation embarked on an era of drug prohibition
that continues to this day.
DRUG PROHIBITION AND BUREAUCRATIC ENTRENCHMENT
Concerns about the constitutionality and wisdom of the Harrison Narcotic Act
continued throughout the 1920s. In 1928, however, the Supreme Court partly settled the
issue by specifically upholding the constitutionality of the Act.137 By that time there was
a widespread national debate about alcohol prohibition, but apart from the continuing
controversy between the medical community and the federal government, there was
comparatively little national discussion about the Harrison Act.
Heavy enforcement of the Harrison Narcotic Act led to prison overcrowding,
however, and to calls for alternatives to imprisonment. By the late 1920s more federal
prisoners were being housed for Harrison Act violations than for any other class of
offense.138 Representative Stephen G. Porter (R-PA), chair of the House Committee on
Foreign Affairs, who had emerged as a new leader in the fight against narcotics, took up
the idea of creating “federal narcotics farms” where drug addicts convicted under the
Harrison Act could be housed and treated for their addiction. President Coolidge signed
into law the Porter Narcotic Farm Act in 1929, which established one farm in Lexington,
Kentucky and another in Fort Worth, Texas.139
The Porter Act of 1930
Following the success of his Narcotic Farm bill, Rep. Porter turned his attention
to the creation of a new government agency to take up enforcement of the Harrison Act.
It was Porter’s desire to have a separate drug enforcement agency both to streamline the
bureaucracy and to represent the United States at foreign conferences. In 1930 Congress
thereby established the Bureau of Narcotics, to be housed in the Treasury Department,
and Treasury Secretary Andrew Mellon appointed his nephew-in-law Harry J. Anslinger
as its first commissioner.140 Although not fully realized at the time, Anslinger’s
appointment was an extremely significant event, as he would go on to become one of the
most prominent and influential figures in the history of American drug control policy.
“Reefer Madness”
Marijuana became the next major target of U.S. anti-drug efforts, which was a
curious development given the fact that for several years the Bureau of Narcotics had
consistently minimized the dangers of the drug.141 Only a decade earlier, the U.S.
137
Nigro v. U.S., 276 U.S. 332 (1928).
Id. at 204.
139
21 U.S.C. §§ 221-237 (1934) (repealed 1944).
140
Alexander T. Shulgin (1988), op. cit., p. 245.
141
With regard to popular accounts of a marijuana threat, the Bureau wrote: “This publicity tends to
magnify the extent of the evil and lends color to an inference that there is an alarming spread of the
improper use of the drug, whereas the actual increase in such use may not have been inordinately large.”
138
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Agriculture Department had published pamphlets urging Americans to grow marijuana
(cannabis) as a profitable undertaking.142 Narcotics Commissioner Harry Anslinger had
stated that heroin was a much greater danger, that marijuana was only a “problem” in
areas with large Mexican populations and that marijuana legislation would be most
effective at the state level.143
A closer look at the behind-the-scenes intrigue involving certain influential
Americans in the 1930s reveals how the sudden federal campaign against marijuana was
more likely related to economic factors and to commercial interests more than to any
legitimate fears over the drug itself. In the 1920s the Du Pont Company had developed
and patented numerous petroleum-based products, including fuel additives, chemical
processes for the manufacture of paper from wood pulp and numerous synthetic products
such as nylon, cellophane and other plastics. At the same time other firms were
developing synthetic products from renewable biomass resources, especially from hemp
(cannabis). By 1935 raw cellulose from hemp had become a viable option for fuel, fabric
and plastics and paper – a cheaper, cleaner and renewable raw material compared to
petroleum. Faced with this competition, Lammont DuPont lobbied the U.S. Treasury
Department to seek the prohibition of hemp.144
Business interests of William Randolph Hearst, the newspaper magnate, were also
threatened by hemp, as his timber holdings and his joint enterprises with DuPont for
wood-based pulp papermaking would have been rendered uncompetitive.145 Hearst used
his chain of newspapers to aggravate racial tensions, portraying Mexicans in particular as
lazy, degenerate and violent and as job stealers and smokers of “marihuana” – a word
brought into the common parlance due in part to frequent mentions in Hearst’s
publications.146 The aggressive efforts to demonize cannabis were effective, as the sheer
number of newspapers, tabloids, magazines and film reels under Hearst’s control enabled
him to inundate American media with propaganda. Americans readily accepted the
Federal Bureau of Narcotics (1932), Report by the Government of the United States of America for the
Calendar Year Ended December 31, 1931: On the Traffic in Opium and Other Dangerous Drugs,
Government Printing Office, p. 51.
142
David F. Musto (1973), “An historical perspective on legal and medical responses to substance abuse,”
Villanova L. Rev., v.18, May 1973, p. 816.
143
William O. Walker, III (1981), op. cit., p. 103.
144
See John Craig Lupien (1995), Unraveling an American Dilemma: The Demonization of Marihuana,
thesis presented to the Faculty of the Graduate School, Pepperdine University, with exhaustive summary
and analysis of Record Group 170, Accession Number: W 170-74-005, Boxes 1-5, the “Marihuana Tax Act
of 1937” files from the Washington National Research Center, National Archives. See also Chris Conrad
(1993), Hemp: Lifeline to the Future, Los Angeles: Creative Xpressions Publications; Jack Herer (1991),
The Emperor Wears No Clothes, Van Nuys: Hemp Publishing; James B. Slaughter (1988), “Marijuana
Prohibition in the United States: History and Analysis of a Failed Policy,” Columbia Journal of Law and
Social Problems, v.21, n.4, pp. 417-474; and Michael Schaller (1970), “The Federal Prohibition of
Marihuana,” Journal of Social History, v.4, n.1, Fall 1970, pp. 61-74.
145
In the 1930s a new technique for using hemp pulp for papermaking was developed by the Department of
Agriculture, in conjunction with the patenting of the hemp “decorticator,” a revolutionary new technology
for harvesting hemp. See “The New Billion Dollar Crop,” Popular Mechanics, v.69, February 1938, pp.
238-239; and R. S. Kellogg (1936), The Story of News Print Paper, New York: Newsprint Service Bureau,
pp. 48-49.
146
Jack Herer (1991), op. cit., pp. 24-25.
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stories of crazed crimes incited by marijuana use, and official accounts of the “evils” of
marijuana continue to color popular opinion of the drug today.
The Marihuana Tax Act of 1937
Under pressure to take a stand against marijuana, Harry Anslinger and the Bureau
of Narcotics readily changed the agency’s position and sought a means by which to bring
the drug under federal control. Passage of a marijuana bill under the treaty power was
not feasible since Mexico declined to support a trilateral marijuana pact with the United
States and Canada, and it was also unlikely that a revenue measure could provide
adequate government control.147 Therefore, the Bureau conceived the idea of regulating
marijuana with a transfer tax, an approach taken in the National Firearms Act, which
levied a tax on transfers of machine guns and which had been recently upheld by the
Supreme Court.148
Anslinger and the Bureau of Narcotics drafted the Marihuana Tax Act of 1937 and
also worked through the media to create the marijuana “problem,” arguing principally
that marijuana use produced insanity and led to violent crime.149 The Senate report
accompanying the bill described the danger as follows:
Under the influence of this drug marihuana the will is destroyed and all
power of directing and controlling thought is lost. Inhibitions are released.
As a result of these effects, many violent crimes have been committed
under the influence of this drug …. [M]arihuana is being placed in the
hands of high school children…by unscrupulous peddlers. Its continued
use results many times in impotency and insanity.150
Despite opposition by the American Medical Association and other moderate
voices, the Marihuana Tax Act passed without a recorded vote and after only two hours
of debate and was signed into law on October 1, 1937. The measure did not actually
prohibit possession or sale of marijuana; rather, any person importing, selling or
otherwise handling cannabis was required to register with the government and pay a
transfer tax on each transaction. Those without the fiscal transfer stamp could be fined
and jailed for up to twenty years.151
Passage of the Marihuana Tax Act cemented the power of Harry Anslinger over the
direction of U.S. drug policy and further entrenched the federal government’s authority to
regulate “illicit” drugs by any means. Anslinger deflected skepticism and concern about
the wisdom of the hard-line policy on marijuana and pressed on for decades with an
effective public relations campaign and with vigorous criminal enforcement under the
growing arsenal of federal drug laws.152
147
William O. Walker, III (1981), op. cit., p. 103.
David F. Musto (1999), op. cit., p. 222.
149
Norman E. Zinberg and John A. Robertson (1969), op. cit., p. 178.
150
Id. at 178-179, quoting the U.S. Senate report accompanying the Marijuana Tax Act of 1937.
151
Alexander T. Shulgin (1988), op. cit., p. 245.
152
Within a year after passage of the Marijuana Tax Act, Harry Anslinger had to rebut New York Mayor
Fiorello La Guardia, who had commissioned a team of distinguished scientists to study the effects of
148
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The Boggs Act of 1951
During the Second World War the U.S. experienced a relative decline in levels of
use of opiates, cocaine and marijuana.153 Some of the decline was due to an acute
shortage in opiate supplies, where shipments from opium-producing countries were either
cut off or impaired by military actions.154 The opiate shortage meant, however, that
persistent narcotics addicts could no longer easily obtain illicit opiates through medical
supply channels as they had before and, where scarcity increased the “street” price, the
huge profits in narcotics began to attract criminal enterprises in a burgeoning black
market, especially for heroin.155
In the years immediately following the World War II levels of illicit drug use began
to rise steadily once again.156 This caused concern in the Bureau of Narcotics and
resulted in modification in the penalties associated with Harrison Act violations. The
Boggs Act, named after Representative Hale Boggs (D-LA), was passed in 1951 and
imposed the nation’s first mandatory minimum sentences for drug-related convictions.157
marijuana. His concern stemmed from the abundance of sensationalistic newspaper accounts that New
York’s youth was “teetering on the brink of an orgy of marihuana-induced crime and sex.” Ernest L. Abel
(1980) op. cit., p. 249. To Anslinger’s dismay, the findings of the La Guardia Commission contradicted the
arguments which the Bureau had presented during its final assault against marihuana. Specifically, the
report stated that:
“Marihuana is used extensively in the Borough of Manhattan but the problem is not
as acute as it is reported to be in other sections of the United States;
“The distribution and use of marihuana is centered in Harlem;
“The majority of marihuana smokers are Negroes and Latin Americans;
“The practice of smoking marihuana does not lead to addiction in the medical sense
of the word;
“The sale and distribution of marihuana is not under the control of any single
organized group;
“The use of marihuana does not lead to morphine or heroin or cocaine addiction and
no effort is made to create a market for these narcotics by stimulating the practice of
marihuana smoking;
“Marihuana is not the determining factor in the commission of major crimes;
“Marihuana smoking is not widespread among school children; and
“Juvenile delinquency is not associated with the practice of smoking marihuana.
“The publicity concerning the catastrophic effects of marihuana smoking in New York City is unfounded.”
La Guardia Commission (1973 reprint), The Marihuana Problem in the City of New York, Metuchen:
Scarecrow Reprint Corp., pp. 24-25.
153
William O. Walker, III (1981), op. cit., pp. 170-171.
154
Daniel Glaser, “Interlocking Dualities in Drug Use, Drug Control and Crime,” in James A. Inciardi and
Carl D. Chambers, eds. (1974), Drugs and the Criminal Justice System, Beverly Hills: Sage, p. 46.
155
Id.
156
H.J. Anslinger (1951), “The Federal Narcotic Laws,” Food, Drug, and Cosmetic Law Journal, v.6, pp.
743-748.
157
Public Law No. 255, 82nd Cong., approved 2 Nov. 1951. Under the Boggs Act, first convictions carried
a mandatory minimum penalty of two years in jail and second or subsequent convictions could not be
reduced by suspensions or probation.
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Criticism from the Professions
The federal government’s continued punitive emphasis began to attract many
critics, including the American Bar Association, which succeeded in getting a
congressional subcommittee to reexamine the nation’s narcotic problem. The American
Medical Association joined forces with the ABA in questioning America’s drug policies.
In response, Senator Price Daniel (D-TX) called for a study of the U.S. approach to the
drug problem. The Daniel hearings were held across the country but there were signs that
Harry Anslinger and the Bureau of Narcotics were integral in shaping the content and
conclusions of those hearings.158
There was little surprise in 1956 when Daniel’s committee concluded that
America’s drug problem was severe and that drastic punitive measures were justified. In
a nine-page report the committee “accused the Supreme Court of permitting major dope
traffickers to escape trial by its too-liberal interpretation of constitutional safeguards; it
found the Narcotics Bureau could not fight the traffic effectively without being freed to
tap telephones; the allowance of bail in narcotics cases was intensifying the flow of drugs
into the country; and Bureau agents ought to have statutory authority to carry
weapons.”159 It further condemned the notion of drug treatment clinics, and called for
increased penalties for drug offenses, including the death penalty for smuggling and
heroin sales.160
The Narcotic Control (Daniel) Act of 1956
The end result of Senator Daniel’s work was the Narcotic Control Act of 1956,
which passed with very few questions and little dissent. The measure increased both
prison terms and fines for violations of narcotics laws and established new mandatory
minimum sentences by eliminating suspended sentences, probation and parole. In
addition, a provision for imposing the death penalty was added, applying to anyone over
eighteen years of age who provided heroin to anyone under eighteen years of age.161 This
outcome was not likely what the American Bar Association had intended when it called
for a reexamination of the drug laws. Despite these severe measures, illicit drug use
increased dramatically into the 1960s.
Drug Abuse Control Act of 1965
America’s drug scene changed dramatically in the 1960s. Baby-boomers entered
their formative years and the nation was experiencing previously unparalleled economic
prosperity, but at the same time the social fabric of America was being torn apart by the
conflict in Vietnam. Drugs such as marijuana and heroin once again surged in popularity
along with the use of newer drugs such as barbiturates, amphetamines and LSD. Young
people were encouraged to “question authority” and the prevailing culture and drug use
158
Rufus King (1972), The Drug Hang-Up, America’s Fifty Year Folly, Springfield: Bannerstone House,
ch. 14.
159
Id. at ch. 16.
160
Id.
161
Alexander T. Shulgin (1988), op. cit., p. 246.
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was a “symbol of rejection of traditional values and patriotism.”162 Drug policy was
deeply ingrained as a major issue of national political concern and even had President
Kennedy’s attention.163 A report by a Presidential advisory commission in 1963 focused
on the dangers of drugs and called for new repressive legislation to fight their spread.164
The Drug Abuse Control Amendments of 1965 charted a new course in federal drug
laws. Under this Act, the Bureau of Drug Abuse Control was established within the Food
and Drug Administration (FDA). The FDA assumed responsibility for enforcement of
this new law, which in its limited scope covered stimulants and depressants and which
“imposed a registration, inspection and record-keeping pattern, covering everyone
concerned with the controlled traffic, which closely paralleled the Harrison [Act]
requirements.”165
Despite being hailed as a new front in America’s campaign against illicit
psychoactive substances, the 1965 Amendments failed to curb the nation’s appetite for
them. In fact, regulations promulgated under the law led to quotas on the number of
pharmaceutical methamphetamine tablets that could be produced, thereby limiting supply
and spawning a black market in “speed,” marketed at first by the Hell’s Angels
motorcycle gang in the 1960s and later by other criminal organizations.166 The “meth
lab” problem plaguing Washington and other western states today is a haunting
reenactment of the “speed lab” problem in California in the 1960s, each brought about by
the severe restrictions placed on pharmaceutical amphetamines almost 40 years ago.
In 1968 a merger of the FDA’s relatively new Bureau of Drug Abuse Control with
Treasury’s old Bureau of Narcotics created a new agency named the Bureau of Narcotics
and Dangerous Drugs, housed in the Department of Justice. That same year, Congress
made further amendments and modifications to the Harrison Act and, once again,
increased penalties for federal law violations.167
International efforts to control drugs intensified during the 1960s. The black
market and trafficking of illicit drugs was taking on added importance in the United
States by the end of the decade when “a torrent of Mexican and, to a lesser degree,
Colombian marijuana flooded the country.”168 Heroin was smuggled from Turkey in
162
David F. Musto (1999), op. cit., p. 248.
In 1962 President John F. Kennedy, speaking on the issue of consumer protection legislation, remarked
that “one problem meriting special attention deals with the growing abuse of non-narcotic drugs, including
barbiturates and amphetamines. Society's gains will be illusory if we reduce the incidence of one kind of
drug dependence, only to have new kinds of drugs substituted. The use of these drugs is increasing
problems of abnormal and social behavior, highway accidents, juvenile delinquency and broken homes.”
164
Rufus King (1972), The Drug Hang-Up, America’s Fifty Year Folly, Springfield: Bannerstone House,
Ch. 26.
165
Rufus King (1972), The Drug Hang-Up, America’s Fifty Year Folly, Springfield: Bannerstone House,
Ch. 26.
166
The record-keeping requirements and restrictions on amphetamine production created shortages that
drove up the “street” price high enough to attract criminal organizations to profit from the traffic, as was
the case with opiates in the 1940s and 1950s and with alcohol in the 1920s. Richard Davenport-Hines
(2002), op. cit., pp. 312-313.
167
Alexander T. Shulgin (1988), op. cit., p. 247.
168
Id.
163
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massive quantities and by 1970 the United States saw unprecedented levels of heroin use.
Drugs were becoming one of the nation’s most prominent issues of social concern.
THE MODERN “WAR ON DRUGS”
Under President Nixon’s command the U.S. embarked on a new era of drug control.
Shortly after assuming office in 1969, President Nixon announced a global campaign to
stamp out drugs and drug traffickers. He launched “Operation Intercept” and ordered the
closure of 2,500 miles of the Mexican border and searches of hundreds of thousands of
people and vehicles.169 In 1970 Nixon created the National Commission on Marijuana
and Drug Abuse and in 1971 he declared drugs to be “public enemy number one.” These
actions marked the initiation of the national and international “War on Drugs.”
The Comprehensive Drug Abuse Prevention and Control Act of 1970
The Controlled Substances Act of 1970 was another historic turning point in
America’s attitude and approach to regulating illicit drugs.170 This Act completely
replaced the Harrison Narcotic Act as the federal government’s primary vehicle of
domestic drug control. It reformed all previously existing drug laws under the federal
power to regulate interstate commerce and introduced a system by which drugs were
divided into categories depending upon their potential for abuse. One immediate impact
of this act was to “effectively destroy the Federal-State relationship that existed between
the Harrison Act and the Uniform Narcotic Drug Act.”171 To restore this balance the
Commissioners on Uniform State Laws created the Uniform Controlled Substances
Act.172 This scheme of complementary federal and state drug control laws soon became
the national standard.
The “War on Drugs” came of age in the 1970s as President Nixon declared “total
war…on all fronts against an enemy with many faces,”173 a thinly-veiled reference to
counter-culture protesters and racial minorities.174 Nixon exhibited personal anger toward
drug users in America and “as a puritan and as a man perennially frustrated with his
circumstances …detested the hedonism and easy gratification of many young people.”175
This sentiment was reflected in some of the heavy-handed drug policies the Nixon
administration pursued, although there was also a major thrust at the time to address the
heroin addiction problem through treatment.176 The federal bureaucratic mechanism for
drug control was strengthened under Nixon as Congress consolidated all anti-drug
activities under the new Drug Enforcement Agency in 1973.
169
Richard Davenport-Hines (2002), op. cit., p. 422.
Pub.L. 91-513, Oct. 27, 1970, 84 Stat. 1236.
171
Alexander T. Shulgin (1988), op. cit., p. 247.
172
Id.
173
Richard Davenport-Hines (2002), op. cit., p. 421.
174
See Dan Baum (1996), Smoke and Mirrors: The War on Drugs and the Politics of Failure, New York:
Little Brown and Co.
175
Id.
176
See Jerome H. Jaffe, “One Bite of the Apple: Establishing the Special Action Office for Drug Abuse
Prevention,” in David F. Musto, ed. (2002), op. cit., pp. 43-53.
170
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The federal approach toward illegal drugs took on a slightly different tenor during
the brief administration President Ford, who expressed some pragmatism about drug use.
While Ford did continue to press for stronger anti-drug measures, he did so from a
perspective that drug abuse was always going to be a problem and that hopes of
completely eliminating it were illusory.177 This new attitude was also reflected during the
Carter administration, as President Carter expressed concerns about current drug policies
and even suggested that marijuana should be decriminalized.178 This suggestion never
made its way into federal law, however, and before long, any perceived softening of
attitudes towards drug use quickly dissipated.
Out of the maelstrom of Vietnam, Watergate, oil embargoes and “stagflation” in the
late 1970s, popular fears rose once again to dictate national drug policy as the political
center of gravity was moving back to the right. The infamous drug cartels from
Colombia were becoming a fixture in international politics and trade, and parents were
becoming more concerned about drug use by their pre-teen and teenage children.
President Ronald Reagan came to office with an attitude toward illicit drugs that was
reminiscent of the Nixon years. Nancy Reagan’s “Just Say No” campaign swept the
nation in the 1980s and was very popular with parents, schools and the media. Reagan
also supported a strong law enforcement approach to drug control and even replicated
some of the tactics used earlier during the Nixon administration.179
The Comprehensive Crime Control Act of 1984
In 1984 Congress amended the Controlled Substances Act in various ways,
including providing for scheduling of certain “designer drugs,” for government seizure of
profits derived from criminal acts and for temporary placement of substances into
Schedule I of the CSA without the usual procedural requirements when required to avoid
an imminent public safety hazard.180 By this time, a new “menace” was emerging on the
national scene in the form of crack cocaine. Images of street gangs, inner city violence
and the growing threat of a deadly new disease called AIDS were creating fear across all
across the nation and having a profound influence on public perceptions of drugs. In
1986 a college basketball star, Len Bias, died suddenly from a suspected cocaine
overdose and the furor over cocaine and other drugs became front-page news.
177
David F. Musto (1999), op. cit., p. 257. It was during the Ford administration that the Domestic Council
Drug Abuse Task Force released its White Paper on Drug Abuse, which recognized that governmental
actions could only hope to contain the problem of drug abuse and that total elimination was an unlikely
prospect. See Domestic Council Drug Abuse Task Force, White Paper, September 1975, p. 97-98.
178
In a message to Congress, President Carter stated that “penalties against possession of a drug should not
be more damaging to an individual than the use of the drug itself; and where they are, they should be
changed.” Quoted in David F. Musto (1999), op. cit., p. 261.
179
In 1982 the White House launched a coordinated effort in South Florida to fight illegal drugs entering
the state. The government spent millions to seize over 30 tons of cocaine and 1500 tons of marijuana
between 1983 and 1985. Richard Davenport-Hines (2002), op. cit., p. 437. Despite this massive
interdiction, drug use was estimated by the DEA to have increased substantially during that time. Yet,
while more money was appropriated for law enforcement, funding for treatment and research declined.
David F. Musto (1999), op. cit., p. 267.
180
See Pub. L. No. 98-473, Oct. 12, 1984, 98 Stat. 1976; Alexander T. Shulgin (1988), op. cit., p. 250.
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The Anti-Drug Abuse Act of 1986
In 1986 President Reagan signed the Anti-Drug Abuse Act of 1986181 and
intensified the federal government’s campaign against drugs and the bipartisan support
for tough new penalties for drug law violators was partly a reaction to the overdose death
of Len Bias. Passed with a nearly unanimous vote, the Act instituted five- and ten-year
mandatory minimum sentences and also the possibility of the death penalty for certain
drug offenses.
The Anti-Drug Abuse Act of 1988
The White House Office of National Drug Control Policy (ONDCP), an Executive
branch office, was created with passage of the Anti-Drug Abuse Act of 1988.182 This
measure was directed toward preventing the manufacture of scheduled drugs and
included increased penalties to further discourage drug use. In passing this legislation,
Congress avowed that, “the legalization of illegal drugs, on the Federal or State level, is
unconscionable surrender in a war in which…there can be no substitute for total victory,”
and that “it is the declared policy of the United States Government to create a drug-free
America by 1995.”183 Despite billions of dollars in spending and the incarceration of tens
of thousands of drug offenders, this goal was never attained.
The “War on Drugs” into the 21st Century
Drug-related law enforcement activity and the increasing incarceration of drug
offenders did not slack off during the 1990s, when “illicit” drug use was on the rise again.
In fact, the last decade of the 20th century saw unprecedented law enforcement activity
related to illegal drugs. Unfortunately, the increasing arrest and incarceration of drug
offenders and the lengthening of prison sentences during the 1990s failed to reduce the
prevalence of drug use, the problem of drug abuse, the incidence of drug offenses and
drug-related crime and the related public costs.184
Recent rehabilitative options for drug offenders have largely been a reaction to the
perceived ineffectiveness of criminal sanctions. Some encouraging reports have come
from the nation’s new “drug courts,” which have been shown to reduce recidivism and
prohibited drug use among their participants.185 Meanwhile, the vast majority of drug
offenders at the state and federal levels continue to serve long prison terms, most without
any rehabilitative component to their sentences, as taxpayers continue to spend hundreds
of millions of dollars annually to confine repeatedly a class of non-violent offenders who
have the highest recidivism rate because of their drug dependence. As the King County
Bar Association stated in 2001, “The cost of drug-related criminal sanctions has been
high, but the promised benefit of this policy has not been realized.”186
181
Pub. L. No. 99-570, Oct. 27, 1987, 100 Stat. 3207.
Pub. L. No. 100-690, Nov. 18, 1988, 102 Stat. 4181.
183
Alexander T. Shulgin (1988), op. cit., p. 250.
184
See King County Bar Association (2001), Is It Time to End the War on Drugs?, op. cit., pp. 59-65.
185
See discussion of drug courts in King County Bar Association (2005), “Controlling Psychoactive
Substances; The Current System and Alternative Models,” Report of the Legal Frameworks Group to the
King County Bar Association Board of Trustees, pp. 13-14.
186 King County Bar Association (2001), op. cit., p. 65.
182
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The Legacy of Drug Prohibition
The unfortunate legacy of the recent federal drug laws includes a five-fold increase
in federal drug convictions since the 1970s and over 67,000 sentenced drug offenders in
federal prison in 2001, compared to 3,400 in 1970, where drug offenders now comprise
over 55% of the federal prison population.187 Meanwhile, high school seniors report that
marijuana is easier to get now than it was during most of the 1980s and 1990s and more
high school students use marijuana than tobacco.188 In addition, heroin is also easier for
high school student to obtain than it was in the 1970s and 1980s and one in three high
school seniors say that it is now easy to get cocaine, crack or LSD.189 Further, the death
rate from the use of illegal drugs has more than doubled from 3.0 per 100,000 in 1980 to
7.2 per 100,000 in 2000.190 As the purity of street drugs increases and prices continue to
fall, there are signs that the criminal enterprises trafficking in drugs are becoming more
efficient, selling a better product for less.191 The tragic failure of federal drug policy has
finally led to calls for fundamental reform.
187
Sourcebook of Criminal Justice Statistics (1997), Bureau of Justice Statistics, Washington: Department
of Justice, table 5.37 p. 414; Sourcebook of Criminal Justice Statistics (2001), Bureau of Justice Statistics,
Washington: Department of Justice, table 5.19, p. 416, and table 6.51, p. 512.
188
Johnston, L. D., O'Malley, P. M., & Bachman, J. G. (2003). Monitoring the Future National Survey
Results on Drug Use, 1975-2002, NIH Publication No. 03-5375, Bethesda: National Institute on Drug
Abuse, v.I, table 13.
189
Id.
190
Office of National Drug Control Policy (2003), National Drug Control Strategy, Feb. 2003, table 25.
191
The purity of drugs on the street has increased dramatically. The average purity of the heroin sold on
the street has increased more than 500% since 1979, from 4% pure to 25% pure, and the prices for illegal
drugs have steadily declined. See Office of National Drug Control Policy (2003), National Drug Control
Strategy, Feb. 2003, table 41.
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